State seeks dismissal of daycare suit

BENNINGTON — The state seeks dismissal of a suit brought by the owner of a former daycare facility who alleges the actions of a state trooper and three Department for Children and Families employees forced her out of business.

Assistant Attorney General Bartholomew Gengler filed a motion in late July seeking a dismissal in U.S. District Court. The AG's office represents State Trooper Robert Zink, DCF employees Christopher Murphy, Elaine Crawford and Stacey Edmunds-Brickell and the state as their employer in a suit filed in May by Debi Miller of Pownal.

Gengler argues in part that the officials are entitled to qualified immunity from such claims in that they were acting in their official capacities, and that their actions were not unreasonable given the situation.

Miller was charged with reckless endangerment of a child and had her right to operate a daycare suspended after a May 13, 2016, incident in which a one-year-old child had to be transported to the hospital with what was determined to be a potentially fatal condition affecting her breathing.

The child recovered after initial treatment at Southwestern Vermont Medical Center in Bennington and later treatment at Albany (N.Y.) Medical Center.

The criminal charge against Miller was subsequently dismissed by a Superior Court judge, and suspension of her daycare license was overturned.

She alleges the actions of the officials caused her to lose her North Bennington business, called Dooda's Daycare, which in May 2016 served more than 30 children and had eight employees, according to the suit.

In addition, the suit filed by attorney Devin McLaughlin, of Langrock, Sperry & Wool, of Middlebury, alleges Miller suffered "extreme emotional stress" because of the actions of the state employees.

Referring to the allegation of emotional stress, Gengler argues: "There are no allegations that the state defendants did anything during the course of the investigation that went beyond all possible bounds of decency as to be regarded as intolerable in a civilized society. To the contrary, plaintiff has not challenged any of the factual findings of the state defendants, only the ultimate conclusions they reached based on their investigation."

He also argues that "the state defendants are entitled to qualified immunity on the state law claims of false arrest and malicious prosecution."

Referring to the allegations against the DCF employees, Gengler states, "In this case, it was neither arbitrary nor conscience-shocking for the state employees to believe that the health, safety or well-being of children were at risk The decision to suspend the license followed the initiation of criminal charges against the plaintiff by Vermont State Police."

After suspending her daycare license upon her criminal citation on May 25, 2016, for alleged reckless endangerment of a child, the DCF briefly reinstated the license after the charge was dismissed in Superior Court in June for lack of probable cause. But the DCF then notified Miller that she was still under investigation by the agency, according to the suit.

The suit says that Miller was notified in mid-July 2016 that "DCF had decided to substantiate her as a child abuser," stating that on May 13 she had abused the one-year-old child by placing her at risk of harm. The DCF decision barred Miller from operating a daycare until it was overturned in February 2017 after an administrative review.

The suit states that a reviewer in February "rejected DCF's substantiation decision, finding that the evidence did not meet the current legal and policy standards for substantiation, meaning no reasonable person would believe that Mrs. Miller abused the child."

Referring to Zink, the suit alleges "false arrest and malicious prosecution" in seeking a criminal charge, which the suit says was undertaken "without probable cause, and which deprived her of her liberty and right to operate a licensed daycare business ."

Gengler argues in his motion to dismiss that, "In this case, it was reasonable for defendant Zink to believe the plaintiff's actions met the statutory elements of `recklessness' and `willfulness,'" under state law. "Plaintiff was aware that something was wrong when she first observed the child, but waited between 20 and 35 minutes to call the child's mother to inquire whether there were any health concerns with the child and request that the mother take the child to the doctor."

The attorney added that "it was reasonable for an officer in defendant Zink's position" to believe that not earlier seeking medical attention for the child "was a willful act of neglect that endangered the child's health ."

The criminal charge against Miller, and a similar charge against an employee of the daycare, were dismissed by Judge David Howard in Superior Court in Bennington in June 2016. The judge cited a lack of probable cause, reiterating aspects of the chain of events leading to the child's hospitalization and adding, "These are not neglectful actions or ill treatment."

Miller's suit also notes that State Police issued a press release about the criminal citations on May 25, 2016, which was reported by news organizations and shared on Facebook.

The release stated that Miller and the employee had noticed the child was not alert after letting her sleep for a while. It was then "a considerable amount of time" before they called the child's mother, and several minutes passed before they contacted 911, the release stated.

The suit alleges the publicity resulted in a significant and negative impact on her business.

The suit seeks unspecified compensatory damages, as well as punitive damages, stating that the defendants' actions "were committed willfully, wantonly and maliciously, and were motivated by evil motive or intent, and were recklessly and/or callously and/or deliberately indifferent to Mrs. Miller's rights under the United States Constitution ."

Reached by phone, McLaughlin said he had anticipated a motion to dismiss and expects a motion for a summary judgment motion to follow, saying those motions are typical when a state employee is sued. He said he's confident such arguments can be overcome and believes the issues should be allowed to go to a jury.

Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. @BB_therrien on Twitter.

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